Donohue v. Paterson

May 28, 2010

DANNY DONOHUE, AS PRESIDENT OF THE CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000; AFSCME, AFL-CIO; AND CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000, AFSCME, AFL-CIO, PLAINTIFFS,v.DAVID A. PATERSON, AS GOVERNOR OF THE STATE OF NEW YORK; NEW YORK STATE ASSEMBLY; NEW YORK STATE SENATE; JONATHAN LIPPMAN, AS CHIEF JUDGE OF THE NEW YORK UNIFIED COURT SYSTEM; AND THE STATE OF NEW YORK, DEFENDANTS.KENNETH BRYNIEN, AS PRESIDENT OF THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO, PLAINTIFF,v.DAVID A. PATERSON, AS GOVERNOR OF THE STATE OF NEW YORK; THE STATE OF NEW YORK; NEW YORK STATE GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS; GARY JOHNSON, AS EXECUTIVE DIRECTOR OF TH THE NEW YORK STATE GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS; NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL; AND THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK, DEFENDANTS.PHILLIP H. SMITH, AS PRESIDENT OF UNITED UNIVERSITY PROFESSIONS; UNITED UNIVERSITY PROFESSIONS; MARGARET M. STOLEE; WILLIAM M. SIMONS; BRUCE T. KUBE; ROBERT E. REES; GRETA J. PETRY; LAURA S. RHOADES; AND ELEANOR RICHARDS, PLAINTIFFS,v.HONORABLE DAVID A. PATERSON, AS GOVERNOR OF THE STATE OF NEW YORK; GARY JOHNSON, AS EXECUTIVE DIRECTOR OF THE GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS; NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL; THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK; NANCY L. ZIMPHER, AS CHANCELLOR OF THE STATE UNIVERSITY OF NEW YORK; THE STATE UNIVERSITY OF NEW YORK; AND THE STATE OF NEW YORK, DEFENDANTS.BARBARA BOWEN, AS PRESIDENT OF THE PROFESSIONAL STAFF CONGRESS/CUNY; PROFESSIONAL STAFF CONGRESS/CUNY; FRANK KIRKLAND; ROBERT J. CERMELE; ROBERT S. NELSON, PLAINTIFFS,v.STATE OF NEW YORK, DAVID A. PATERSON, AS GOVERNOR OF THE STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL; THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF NEW YORK; CITY UNIVERSITY OF NEW YORK; MATTHEW GOLDSTEIN, AS CHANCELLOR OF THE CITY UNIVERSITY OF NEW YORK, DEFENDANTS.LILLIAN ROBERTS, AS EXECUTIVE DIRECTOR, DISTRICT COUNCIL 37, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES AFL-CIO; DENNIS IFILL, AS PRESIDENT OF LOCAL 1359 (RENT REGULATION SERVICES UNIT EMPLOYEES); ESTHER TUCKER, AS PRESIDENT OF LOCAL 384; JAMES B. CULLEN, AS ADMINISTRATOR OF LOCAL 2054; MAF MISBAH UDDIN, AS PRESIDENT OF LOCAL 1407; ROBERT AJAYE, AS PRESIDENT OF LOCAL 2627; BEHROUZ FATHI, AS ACTING PRESIDENT OF CIVIL SERVICE TECHNICAL GUILD - LOCAL 375; ERIC LATSON, AS PRESIDENT OF LOCAL 1597; CHARLES FARRISON, AS PRESIDENT OF LOCAL 1797; MARK ROSENTHAL; KYLE SIMMONS, AS PRESIDENT OF LOCAL 924; MANUEL A. ROMAN, JR.; AND CLIFFORD KOPPELMAN, AS PRESIDENT OF LOCAL 1070, PLAINTIFFS,v.DAVID A. PATERSON, AS GOVERNOR OF THE STATE OF NEW YORK; NEW YORK STATE ASSEMBLY; NEW YORK STATE SENATE; JONATHAN LIPPMAN, AS CHIEF JUDGE OF THE NEW YORK UNIFIED COURT SYSTEM; NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL; THE CITY UNIVERSITY OF NEW YORK (MATTHEW GOLDSTEIN, AS CHANCELLOR OF THE CITY UNIVERSITY OF NEW YORK; AND THE STATE OF NEW YORK, DEFENDANTS.

Presently before the Court are five Motions for preliminary injunctions, which seek to enjoin Governor David A. Paterson, the New York State Assembly, the New York State Senate, and the other named Defendants from submitting, enacting, or implementing emergency appropriation "extender bills," which contain certain provisions that allegedly impair the terms of state contracts. Case Nos. 1:10-CV-00543 (Dkt. No. 9); 1:10-CV-00544 (Dkt. No. 4); 1:10-CV-00546 (Dkt. No. 4); and 1:10-CV-00549 (Dkt No 4); 1:10-CV-00569 (Dkt. No. 2). The Motions are brought in separate but related actions concerning a single, substantially similar factual basis. The Court shall address all five Motions together in the instant Order.

Four of the underlying actions (Case Nos. 1:10-CV-00543; 1:10-CV-00544; 1:10-CV-00546; and 1:10-CV-00549) were filed on May 11, 2010; the fifth action (Case No. 1:10-CV-00569) was filed on May 14, 2010. Each of the filed actions included an emergency Motion for a Temporary Restraining Order ("TRO"). On May 12, 2010, this Court granted the TROs requested in Case Nos. 1:10-CV-00543 (Dkt. No. 13); 1:10-CV-00544 (Dkt. No. 5); 1:10-CV-00546 (Dkt. No. 5); and 1:10-CV-00549 (Dkt. No. 5); the Court subsequently granted the TRO requested in Case No. 1:10-CV-00569 on May 17, 2010. Dkt. No. 7.*fn2

In Donohue et al v. Paterson et al, 1:10-CV-00543, Plaintiffs Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000; AFSCME, AFL-CIO; and the Civil Service Employees Association, Inc, Local 1000, AFSCME, AFL-CIO ("CSEA") have named as Defendants: David A. Paterson, as Governor of the State of New York; State of New York; the New York State Assembly; the New York State Senate; and Jonathan Lippman, as Chief Judge of the New York Unified Court System. In Brynien v. Paterson et al, 1:10-CV-00544, Plaintiff Kenneth Bryien, as President of the New York State Public Employees Federation, AFL-CIO ("PEF") has named as Defendants: David A. Paterson, as Governor of the State of New York; the State of New York; New York State Governor's Office of Employee Relations; Gary Johnson, as Executive Director of the New York State Governor's Office of Employee Relations; New York State Department of Audit and Control; and Thomas P. DiNapoli, as Comptroller of the State of New York. In Smith et al v. Paterson et al, 1:10-CV-00546, Plaintiffs Phillip H. Smith, as President of United University Professions; United University Professions; Margaret M. Stolee; William M. Simons; Bruce T. Kube; Robert E. Rees; Greta J. Petry; Laura S. Rhoades; and Eleanor Richards have named as Defendants: David A. Paterson, as Governor of the State of New York; the State of New York; Gary Johnson, as Executive Director of the New York State Governor's Office of Employee Relations; New York State Department of Audit and Control; and Thomas P. DiNapoli, as Comptroller of the State of New York; Nancy L. Zimpher, as Chancellor of the State University of New York; and The State University of New York. In Bowen et al v. Paterson et al, 1:10-CV-00549, Plaintiffs Barbara Bowen, as President of the Professional Staff Congress/Cuny; the Professional Staff Congress/CUNY; Frank Kirkland; Robert J. Cermele; and Robert S. Nelson have named as Defendants: David A. Paterson, as Governor of the State of New York; the State of New York; Thomas P. DiNapoli, as Comptroller of the State of New York; New York State Department of Audit and Control; City University of New York; and Matthew Goldstein, as Chancellor of the City University of New York. In Roberts et al v. Paterson et al, 1:10-CV-00569, Plaintiffs Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County, and Municipal Employees AFL-CIO ("DC 37"); Dennis Ifill, as President of Local 1359 (Rent Regulation Services Unit Employees); Esther Tucker, as President of Local 384; James B. Cullen, as Administrator of Local 2054; Mas Misbah Uddin, as President of Local 1407; Robert Ajaye, as President of Local 2627; Behrouz Fathi, as Acting President of Civil Service Technical Guild -Local 375; Eric Latson, as President of Local 1597; Charles Farrison, as President of Local 1797; Mark Rosenthal; Kyle Simmons, as President of Local 924; Manuel A. Roman, Jr.; and Clifford Koppelman, as President of Local 1070 have named as Defendants: David A. Paterson, as Governor of the State of New York; New York Assembly; New York Senate; Jonathan Lippman, as Chief Judge of the New York State Unified Court System; New York State Division of Housing and Community Renewal; The City University of New York, (Matthew Goldstein, as Chancellor of the City University of New York); and the State of New York.

While the named Defendants differ in part as to each case due to the different groups of public employees represented as Plaintiffs in the matters, the object of the preliminary injunction Motions and the arguments made in support of those Motions are broadly the same.*fn3 For purposes of this Order and specification of the relief granted, the Plaintiffs in all five of the matters shall, collectively, be referred to as "Plaintiffs."

The State of New York is party to collective bargaining agreements ("CBAs") with a variety of public employee organizations pursuant to Article 14 of the New York Civil Service Law, otherwise known as the Taylor Law. "[T]o promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government," Article 14 sets forth the rights of employee organizations, and the procedures governing their relations with the State as an employer. See N.Y. CIV. SER. LAW § 200. Accordingly, the State has agreed to contracts, currently in effect, which establish the terms and conditions of employment for members of those organizations. Nevertheless, Governor David A. Paterson submitted, and the New York State Legislature passed, an emergency appropriations bill, which enacted unpaid furloughs, a wage freeze, and a benefits freeze on certain groups of state employees in contravention of a number of such contracts. The legislation, a so-called "extender bill," temporarily funded the continued operation of the State in the absence of an official budget, and expressly imposed the altered terms "[n]ot withstanding any other provisions of this section or of any other law, including article fourteen of this chapter, or collective bargaining agreement or other analogous contract or binding arbitration award . . . ." See, e.g., Case No. 1:10-CV-00544 (Dkt. No. 4-7, Ex.G) at 63. This legislation was the subject of this Court's prior Orders granting Plaintiffs emergency Motions for a Temporary Restraining Order, which enjoined the implementation of the above-mentioned furlough and wage provisions. Case Nos. 1:10-CV-00543 (Dkt. No. 13); 1:10-CV-00544 (Dkt. No. 5); 1:10-CV-00546 (Dkt. No. 5); 1:10-CV-00549 (Dkt. No. 5); 1:10-CV-00569 (Dkt. No. 7).

Plaintiffs, by way of the Contract Clause, U.S. CONST. art. I, § 10, cl. 1, now seek to prevent further weekly "extender bills" from imposing the challenged terms prior to resolution of their suits. For a more extensive understanding of the factual background to the instant cases, see generally, Case Nos. 1:10-CV-00543, 1:10-CV-00544, 1:10-CV-00546; 1:10-CV-00549 and 1:10-CV-00569.

II. STANDARD OF REVIEW

"A preliminary injunction is an extraordinary remedy never awarded as of right," Winter v. Natural Res. Def. Council, Inc., __ U.S. __, __, 129 S.Ct. 365, 376 (2008), and "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consolidated Edison Co. of New York, Inc., 409 F.3d 506, 510-11 (2d Cir. 2005). Generally, the Court will grant a motion for a preliminary injunction only if the party seeking the injunction can show "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." NXIVM Corp. v. Ross Institute, 364 F.3d 471, 476 (2d Cir. 2004); Citigroup Global Markets, Inc. v. VCG Special Opportunities Masterfund Ltd., 598 F.3d 30 (2d Cir. 2010).

In this Circuit, for a proponent to show a likelihood of success on the merits, that party must make a "clear showing of probable success." See Dopp v. Franklin Nat'l Bank, 461 F.2d 873, 878 (2d Cir. 1972); Haley v. Pataki, 883 F. Supp. 816, 824 (N.D.N.Y. 1995). The party does not need to show that it will ultimately prevail on the merits. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966); Haley, 883 F. Supp. at 824.

III. DISCUSSION

A. Irreparable Harm in the Absence of the Injunction

Irreparable harm is often presumed where a constitutional injury is at stake. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.") (citing New York Times Co. v. United States, 403 U.S. 713 (1971)); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.") (citing 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2948, at 440 (1973)); Deeper Life Christian Fellowship, Inc. v. Bd. of Educ. of City of New York, 852 F.2d 676, 679 (2d Cir. 1988); Statharos v. New York City Taxi and Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) ("Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.") (citing Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996)); Turley v. Giuliani, 86 F. Supp. 2d 291, 295 (S.D.N.Y. 2000) ("Because the violation of a constitutional right is the irreparable harm asserted here, the two prongs of the preliminary injunction threshold merge into one: in order to show irreparable injury, plaintiff must show a likelihood of success on the merits.") (citation omitted). While merely asserting a constitutional injury is insufficient to automatically trigger a finding of irreparable harm, see Public Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380 (2d Cir. 1987), where, as here, the constitutional deprivation is convincingly shown and that violation carries non-compensable damages in addition to monetary damages, a finding of irreparable harm is warranted. Compare infra to Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (finding that preliminary injunctive relief for alleged First Amendment violations was inappropriate because complained of injury was clearly reparable and appellees' likelihood of succeed on the merits was dubious).

The Supreme Court has held that the loss of employment does not, in and of itself, constitute irreparable injury. Sampson v. Murray, 415 U.S. 61, 90-91 (1974). It made this finding in the context of an individual probationary employee's discharge. Id. Yet even in that context, it left open the possibility "that cases may arise in which the circumstances surrounding an employee's discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found." Id. at 92 n.68; see also Holt v. Cont'l Group, Inc., 708 F.2d 87, 90-91 (2d Cir.1983). Thus, while preliminary injunctive relief is inappropriate in typical instances of employee discharge, the Supreme Court expressly "refused to foreclos[e] relief in the genuinely extraordinary situation." Sampson, 415 U.S. at 92 n.68.

Several differences exist between the facts of Sampson and those presented here. Most obviously, unlike in Sampson, the challenged action does not involve an individual probationary employee's discharge, but rather the massive furloughing and wage freeze of tens of thousands of workers. Additionally, Defendants admit that the challenged provisions of the extender bill constitute extraordinary actions, see, e.g., Case No. 1:10-CV-00543, Defs.' Mem. (Dkt. No. 18-10) at 1, rather than the typical instance of employee discharge addressed in Sampson. See ...

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